The Decision-Making Process / Motions and Amendments

June 13, 1988

Debates, pp. 16376-9

On June 6, 1988, the Hon. Herb Gray (Windsor West) rose on a point of order regarding the admissibility of a Government motion suspending the application of various provisions of the Standing Orders with respect to days and times of sittings, so that the House could sit during the summer. The Speaker ruled that it was premature to debate this point of order and suggested postponing debate until the motion in question had inf act been moved.^[1]

The following day, Mr. Nelson Riis (Kamloops—Shuswap) rose on a point of order regarding the same motion. It had appeared on the Order Paper under the heading “Government Notices of Motion,” and Mr. Riis argued that it should be part of Routine Proceedings, under the heading “Motions.” His argument was twofold. First, the motion involved the organization of the business of the House and motions of this type should appear under “Motions.” Second, though the proposed delay in adjourning the House was the result of a desire to spend more time on Government Orders, any motion to extend the session affected private Members’ business and Question Period, and neither of those was a matter of government business. The motion therefore had no place under “Government Notices of Motion.” Other Members also addressed the issue.^[2] The Chair noted the arguments and reminded the House again that this procedural point had perhaps been raised prematurely.

On June 9 and 10, 1988, as the House prepared to debate the content of the motion, the Speaker allowed Members to address its admissibility. A number of Members argued that the motion was out of order because it suspended the application of the Standing Orders and threatened the principle that debate takes place in the House according to established rules that are familiar to all Members. In their opinion, the motion might become a precedent allowing the majority to suspend the Standing Orders whenever it liked. These Members asked the Speaker to use the prerogatives conferred on him by Standing Order 1 to find the motion out of order. Some Members also argued that the motion was out of order because it encroached on the power to summon Members vested in the Speaker only.^[3] The Speaker reserved judgment. On June 13, 1988, he delivered his ruling, which is reproduced in full below.

Decision of the Chair

The Speaker: On June 7, 1988, the honourable Member for Kamloops—Shuswap rose on a point of order relating to Government Business No. 26 on the Order Paper. The item of business deals with the Government’s proposal to suspend certain Standing Orders and to provide for the sitting of the House until September 9, 1988, without the usual summer recess. He specifically complained that the Government should be required to give notice under Motions under Routine Proceedings rather than under Government Notices of Motions.

When Government Order No. 26 was called on June 9 and June 10 last, the honourable Member for Windsor West rose to object to the procedural acceptability of the motion. His argument was principally that the Government, in proceeding this way, was abusing the principle of majority rule and oppressing the minority Parties in the House. He asked the Speaker to intervene in his role as the protector of the minority and to use the powers vested in the Chair by virtue of Standing Order 1. He also argued that if this motion is allowed to be proposed, the Government could use the precedent in future and possibly do away with committee hearings, second reading debates on Bills and even votes on Bills.

The honourable Member for Windsor West was supported in that argument by the honourable Member for Kamloops—Shuswap. Several other honourable Members, in particular the honourable Member for Winnipeg—Birds Hill (Mr. Bill Blaikie), appealed to the Chair to save the parliamentary calendar which was the fruit of the labours of two important reform committees: the Lefebvre Committee and the McGrath Committee.

The honourable Members for Ottawa—Vanier (Mr. Jean-Robert Gauthier), for Saint-Jacques (Mr. Jacques Guilbault) and for Saint-Denis (Mr. Marcel Prud’homme) stated that the Government could in fact call back the House during the summer under Standing Order 5, but they said that it should not be empowered to do so by a simple motion. Several other honourable Members took part in the discussions on the procedural acceptability of this motion and I am grateful to them for their valuable contribution to this debate.

The Chair will address the major points in the following order:

1) Was it proper for the Government to give notice under Government Notices of Motions?

2) Can the Government initiate a motion to suspend the provisions of the Standing Orders?

3) Does such a motion, if in order, require unanimous consent or simply a majority decision of the House?

4) If the motion is in order according to precedence, has the recent parliamentary reform changed our practice fundamentally and rendered prior precedents inapplicable?

Before attempting to answer those basic issues, I believe it would be useful to remind honourable Members and the public of the specific effect of this government motion if it is adopted by the House. I should also reassure honourable Members that its passage would not throw out the rule book, nor would it destroy the major recent reforms. It would, however, most definitely affect many Standing Orders from the period of its adoption to September 9,1988. This motion would clearly suspend:

a) Standing Order 4 which provides for a parliamentary calendar;

b) Paragraph 1 of Standing Order 9 would be suspended and the adjournment of the House on Mondays, Tuesdays and Thursdays would take place at 10 p.m.;

c) Standing Order 66 relating to the adjournment debate or “Late Show” would also be suspended until September 9;

d) Standing Order 10 which provides for an extended sitting motion would also be ineffective.

Those are the only Standing Orders that this motion proposes to suspend. Nevertheless, the motion provides that only Government Orders will be debated in sittings after 6 p.m.

However, other provisions for the daily business such as Statements by Members, Question Period, Routine Proceedings and Private Members’ Business remain unaffected. In the opinion of the Chair, none of the traditional debating procedures would be curtailed and indeed more debating time is provided for.

The Chair will now address the first issue, that is, was it proper for the Government to give notice under Government Notices of Motions.

On June 7, 1988, the honourable Member for Kamloops—Shuswap argued that the item filed on the Notice Paper under the heading Government Notices of Motions dealing with the extension of the sittings of the House of Commons was incorrectly placed and that it should have appeared under the heading Motions. He pointed out that since 1955, all motions dealing with an extension of the sittings of the House have been filed under the heading Motions and not Government Notices of Motions. This, he stated, was because the issue dealt with the business of the House and not the business of the Government.

This issue poses several problems for the Chair. I should first underline that the Standing Orders of the House are silent on interpreting which items should appear under Motions and which items should appear under Government Notices of Motions. The Chair must give some consideration to what types of motions can be filed under these headings.

Can a distinction be made between those types of motions placed under Motions and those under Government Notices of Motions based solely upon their content? I would suggest it cannot.

For example, in this current session, there are eight instances where the House made decisions regarding the Standing Orders under Motions by unanimous consent. However, on June 3, 1987, when the provisional Standing Orders were further amended and made permanent, arguably the most significant decision on the Standing Orders made this session, this was accomplished after two days’ debate on a motion which was called under Government Business. On June 2, the opposition Parties registered their dissatisfaction that the Government chose to proceed unilaterally with amending the rules, but no procedural objection was made to the fact that this was done under Government Orders and not Motions.

These instances reveal the fact that the Standing Orders have often been and perhaps usually are amended under Motions. However, the Government has also proceeded under Government Orders.

The question then becomes, what is the distinction between a Government Notice of Motion and a motion? I would suggest a Government Notice of Motion is any motion that the government gives notice of. In other words, a Government Notice of Motion is not based on the content of the motion, but rather upon the mover. In many cases, therefore, a notice of motion could go under more than one heading and it is up to the Minister giving notice to decide which heading should be chosen. Clearly a Government Notice of Motion can only be moved by the Government, but the Government can choose to place it either under Motions or under Government Notices of Motions.

This concept is borne out in a ruling on May 16, 1985, by Speaker Bosley. He was called upon to rule on whether a time allocation motion had to be moved under Motions during Routine Proceedings or whether it could be placed under Government Notices of Motions and then transferred to Government Orders.^[4]

His decision was that it could be proceeded with in either way and that the choice was up to the Minister moving it.

The Standing Orders do not define what is to be in a motion or notice of motion from the Government. In view of Speaker Bosley’s decision, which I have already quoted, I must therefore say that when there is no distinction, the Minister may choose under what heading he wishes to place his motion. I am, however, unable to support the honourable Member for Kamloops—Shuswap who says that this motion was entered in the wrong place in the Order Paper.

The second question to be addressed is: Can the Government initiate a motion to suspend the provisions of the Standing Orders?

In order to answer that question, we should initially look to the Canadian authorities.

First, the current Canadian House of Commons Standing Orders in Section 56, paragraph (1), subparagraph (o) have at least envisaged the concept of the suspension of the rules. That subparagraph declares that motions for the suspension of the Standing Orders are debatable motions. There is no specific direction as to how such motions are to be decided but such a motion is clearly subject to the provisions relating to notice, debate and amendment.

Second, Citation 21 of Beauchesne Fifth Edition refers to the rules of procedure generally:

The most fundamental privilege of the House as a whole is to establish rules of procedure for itself and to enforce them. A few rules are laid down in the British North America Act, but the vast majority are resolutions of the House which may be added to, amended, or replaced at the discretion of the House. It follows, therefore, that the House may dispense with the application of any of these rules by unanimous consent on any occasion, or, by motion, may suspend their operation for a specified length of time.

Citation 9 of Beauchesne Fifth Edition gives further precision by stating:

All rules are passed by the House by a simple majority and are altered, added to or removed in the same way…

Beauchesne Fourth Edition amplifies more specifically on the Standing Orders by stating in Citation 10:

Standing Orders may be suspended for a particular case without prejudice to their continued validity, for the House possesses the inherent power to destroy the self-imposed barriers and fetters of its own regulations. It may even pass an order prescribing a course of procedure inconsistent with the Standing Orders. A motion for such temporary suspension requires notice…but in urgent cases the notice can be waived… Any alteration in the regular procedure may be made effective by force of a simple resolution. This is one of the characteristics of British procedure and it has contributed in no small degree to the elasticity of our parliamentary system.

Furthermore, there are several precedents of such occurrences in the Canadian House found in the Journals for March 16, 1883, June 1, 1898, April 8, 1948, April 24, 1961, and May 14, 1964.^[5] Clearly then both the authorities and our practices allow for our Standing Orders to be suspended or amended by motion on notice.

The Speaker was urged by many Members to rule on this matter by using Standing Order 1 and referring to traditional parliamentary practice in other jurisdictions, if applicable.

The honourable Parliamentary Secretary to the Government House Leader has already referred to the British practice, and the citation on page 212 of May Twentieth Edition is worthy of repetition:

Standing Orders are not safeguarded by any special procedure against amendment, repeal or suspension, whether explicitly or by an order contrary to their purport. Ordinary notice only is requisite for the necessary motion; and some Standing Orders have included arrangements for the suspension of their own provisions by a bare vote, without amendment or debate.

The Chair has also looked to the Australian practice as commented on by J.A. Pettifer in House of Representatives Practice. It is clear the Australian House does deal with such motions on a regular basis. Its Standing Orders specifically provide for the suspension of a Standing Order on notice. Such motions are debatable, amendable and require only the majority of votes cast to be adopted. The Chair is reluctant to use this practice as a convincing authority because it is supported in Australia by a specific Standing Order. Reference to the Australian practice does, however, demonstrate that suspension of the Standing Orders is not foreign to other Houses in the Commonwealth.

Therefore, in answer to the second question, the Chair is bound by the Canadian practice on the precedents cited earlier, and I must rule that the Government is acting within the rules when it files notice of a motion to suspend certain Standing Orders, and such motions pursuant to Standing Order 56 (1) are debatable, amendable, and votable.

I should now like to address the next question: Does such a motion require the unanimous consent of the House or a simple majority decision?

There is no doubt in anyone’s mind that the House can amend or suspend its rules by unanimous consent. That is a given.

A review of our present Standing Orders reveals that they are, unlike those in the Australian House, totally silent on the manner of suspension. The practice reported by the Journals of the House reveals at least one specific case which was challenged and was ruled on by the Speaker. On March 16, 1883 the Chair “decided that it was perfectly competent on notice having been duly given, as in the present case, for the majority of the House to suspend the rule”. I refer to Journals, page 128 for March 16, 1883.

I am conscious of the fact that some Members may feel that particular ruling may be “dated”, but I would argue it is a very important one. It is one thing to find a series of precedents where the House did something and to demonstrate thereby evidence of an established practice, but a proceeding supported by a Speaker’s decision must stand as firm guidance to future chair occupants unless the rules specifically relating to that subject are altered or events subsequent to it change its nature. I have been unable to find any other guidance or event that would alter my view of that ruling by Speaker Kirkpatrick in 1883. I must, therefore, rule that a motion, duly before the House, to suspend a Standing Order requires a simple majority decision by the House.

I will now address the last question: Has the recent parliamentary reform changed our practice fundamentally and rendered prior precedents inapplicable?

The honourable Members for Winnipeg—Birds Hill, for Saint-Jacques, for Saint-Denis, and for Notre-Dame-de-Grâce—Lachine East (Mr. Warren Allmand) have all eloquently argued that the Government motion would undo years of difficult negotiations by two special committees. The honourable Member for Kamloops—Shuswap has claimed that “we are at a crossroads”. With respect to the calendar, the Lefebvre Committee in its third report, which was concurred in by the House, stated in part:

Your committee is of the opinion that a parliamentary session should be planned on the basis of three annual sitting periods which should ensure a reasonable certainty as to the dates and duration of the periods during which the House would sit.

Consequently, the calendar was inserted into Standing Order 4. The honourable Member for Calgary West has indicated that the House has sat during two of those summer adjournments. These sittings, however, were the result of an application to the Speaker under the terms of Standing Order 5 and not as a result of a motion similar to the one presently on the Order Paper.

As some Members have suggested, the Speaker must take into account not only the letter of the rules but also their spirit. In addition, as I have said before in previous rulings, the Chair should also rely on that most basic rule of all, that of common sense.

To those honourable Members who have asked me to reject the government’s motion on the basis that it is the “tyranny of the majority”, I should like to point to them the possible consequences of accepting their advice.

If a Speaker rules that the Standing Orders could only be suspended or changed by the unanimous consent of the House, the situation could arise where the House would be in jeopardy of becoming procedurally the hostage of a single Member. Indeed, one Member, and one Member alone, could prevent any future procedural reform by withholding his or her consent. For example, one Member could prevent the House from adjourning in the month of May even if all other 281 Members preferred to adjourn prior to June 30.

The unique flexibility of the British parliamentary system, a flexibility which has allowed for adaptations to an infinite variety of circumstances, would be jeopardized. Clearly that is undesirable.

The Chair, however, is very supportive of the parliamentary calendar as brought forward by the Lefebvre Committee. I believe it has been responsible for bringing order to our proceedings and has encouraged and fostered negotiation and compromise between the parties in the days leading up to the automatic adjournments. Without that cooperation and constant negotiation and compromise, our system of government ceases to operate smoothly. If the Chair were to support the view that only consent can modify the calendar, I would be establishing a precedent that would not only refute our practice and precedents to date but would make further reform almost unachievable and it would certainly be far more difficult to achieve the kinds of hallmark amendments brought forward in 1982 and 1985. The motion of the honourable Minister of State was therefore properly before the House.

I want to add one thing. There is an old saying that I may have referred to before, that hard cases make bad law. There was in this case a very natural temptation for the Speaker to try to find some way to uphold the continuance of the calendar. I have to advise regretfully those who argued so strenuously for that course of action, that I think that would have been a case of hard cases making bad law and I had to come down on the side of where I think the procedural law stands. As a consequence, it is accordingly my duty to propose the question.

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1988-06-13